DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX OSR
WASHINGTON DC 20370-5100 Docket No. 09121-10
11 August 2011
This is in reference to your application for correction of your naval
record pursuant to the provisions of title 10 of the United States
. Code, section 1552.
A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on 11
August 2011. Your allegations of error and injustice were reviewed
in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material
considered by the Board consisted of your application, together with
all material submitted in support thereof, your naval record and
applicable statutes, regulations and policies. In addition, the
Board considered the reports of the Headquarters Marine Corps (HOQMC)
Performance Evaluation Review Board (PERB) in your case, dated 16
August 2010 and 15 June 2011, and the advisory opinion furnished by
the HOMC Judge Advocate Division dated 18 November 2010, copies of
which are attached, and your counsel's letter dated 27 July 2011 and
e-mail dated 8 August 2011.
After careful and conscientious consideration of the entire record,
the Board found that the evidence submitted was insufficient to
establish the existence of probable material error or injustice. In
this connection, the Board substantially concurred with the comments
contained in the reports of the PERB, except the finding, in the PERB
report dated 15 June 2011, that the reporting officials for the period
before the reporting period in question were unaware of the findings
of the March 2006 investigation. The Board recognized that the
matter had been dealt with by means of a nonpunitive letter of
caution. However, the Board found this did not preclude your
subsequent superiors from taking the actions you contest. The Board
found it was during the period of the contested fitness report that
you received a formal counseling for your conduct before that period,
as mentioned in section I (reporting senior’s “Directed and
Additional Comments”) of the report. The Board further
substantially concurred with the advisory opinion, except to note
that while the Board itself is not an investigative body, it could
recommend granting your request to investigate your command and the
Defense Intelligence Agency (DIA). The Board was unable to find this
request should be granted. In this regard, the Board observed that
the provision of the Office of the Chief of Naval Operations (OPNAV)
Instruction 5431.F requiring that the investigator be senior to those
.against whom the complaint under investigation was made does not
apply to DIA inspector general investigations. While the Board is
without authority to reinstate your security clearance, it could make
findings concerning those actions to which you object that had to
do with your clearance. However, the Board was likewise unable to
find any impropriety in those actions. The Board was not persuaded
that any of the actions in question were in reprisal for your equal
opportunity complaint or your communication with a Member of
Congress. Since the Board found insufficient basis to grant any of
the relief you expressly requested, it had no grounds to approve your
request to set aside your involuntary discharge from the Regular
Marine Corps. on 1 August 2009 and retroactively restore you to active
duty or any of your implied requests to remove your failures of
selection by the Fiscal Year (FY) 2009 and 2010 Major Selection Boards
and the FY 2011 and 2012 Reserve Major Selection Boards and set aside
action to effect your involuntary discharge from the Marine Corps
Reserve on 1 December 2011. In view of the above, your application
has been denied. The names and votes of the members of the panel
will be furnished upon request.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the Board
reconsider its decision upon submission of new and material evidence
or other matter not previously considered by the Board. In this
regard, it is important to keep in mind that a presumption of
regularity attaches to all official records. Consequently, when
applying for a correction of an official naval record, the burden
is on the applicant to demonstrate the existence of probable material
error or injustice.
Sincerely,
W) Ngo
Executive 1 door
Enclosure
Copy to:
Mr. David P. Sheldon
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